The law school of the future — today

When asked to assess how important McGill University’s introduction of a “transsystemic” law program in 1999 was, Harry Arthurs is definitive. “I think it’s one of the most dramatic changes in English-language legal education in 100 years,” he says.

Photo: Claudio Calligaris

By
Arshy Mann

25 Aug 2014

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Harry Arthurs knows a thing or two about legal education. The 79-year-old has been a fixture of Canada’s legal community for more than 50 years. He has served as dean of Osgoode Hall Law School, president of York University, and was the author of “Law and Learning,” a 1983 report that was the first comprehensive examination of Canadian legal education. When asked to assess how important McGill University’s introduction of a “transsystemic” law program in 1999 was, Arthurs is definitive. “I think it’s one of the most dramatic changes in English-language legal education in 100 years,” he says.

Arthurs isn’t alone in that assessment. Peter L. Strauss, the Betts Professor of Law at Columbia University, calls it the “new Langdellian moment,” referring to Christopher Columbus Langdell, the Harvard Law School dean who introduced the case method, revolutionizing the teaching of law more than a century ago. Over the past 15 years, numerous journal articles have enquired whether McGill’s program is the next frontier in legal education. Europeans have pointed to it as a model for teaching law in a supranational continent, while Americans look to it as a possible way to train students for a globalized legal marketplace.

So what exactly constitutes this paradigm-shifting curriculum? At its essence, transsystemic law attempts to teach students about the law not from the perspective of any one specific jurisdiction, but from the perspective of many. While it sounds like a simple proposition, McGill remains the only law school in the world that imbues this principle into the fabric of its curriculum.

Practically, this means McGill students graduate with both common and civil law degrees. But if you believe the scholars, the consequences for legal education are much more profound. McGill has certainly become the darling of the global legal academy. But will it serve as a beacon among the increasingly stormy waters of legal education like Harvard did a century ago?

The McGill Programme has its roots in the 1920s, when for four years the university offered a combined civil and common law program. The initiative was quickly killed by a number of factors, including a hostile anglophone bar that feared McGill graduates would leave to practise in common law jurisdictions and weaken their grip on Quebec’s legal profession.

It wasn’t until the 1960s, when debates about higher education were rocking universities throughout the Western world, that McGill once again looked to re-evaluate its curriculum. More than most law faculties, McGill faced even greater existential questions. The Quiet Revolution was sweeping through the streets of Montreal, making it uncomfortable for an institution, that to many, represented anglo privilege among an increasingly assertive francophone population.

To combat its isolation, in 1968, the same year René Lévesque formed the Parti Québécois, McGill unveiled the National Programme. It allowed students to receive two degrees in common and civil law if they chose. This permitted graduates to practise in whatever jurisdiction they chose instead of limiting them to Quebec. The courses were taught sequentially, so a student would learn about the second field of law in upper-year courses that were dedicated specifically to either civil or common law.

It took time to evolve. At first, most students chose only to gain one of the degrees, but over the years, more and more opted for both a common and civil law education. However, over the decades, National Programme fatigue set in, and in 1995, McGill’s law school once again set out on a thorough examination of the curriculum.

The process, led by Stephen Toope, then-dean of the faculty, and a previous dean, Roderick Macdonald, took four years of intensive work. “It is not a betrayal of confidences, nor is it an overstatement, to say these efforts severely taxed the patience of many in the teaching faculty, the student body and the administration,” wrote Yves-Marie Morissette, now a judge on the Quebec Court of Appeal, in the Journal of Legal Education.

In 1999, McGill unveiled its new curriculum. Many words were used to describe its innovative new curriculum; transsysytemic and polyjural top the list. But the official name was the McGill Programme.

The McGill Programme was similar to the National Programme in students earned both civil and common law degrees. It differed from its predecessor at a fundamental level, however. Whereas the National Programme taught common and civil law courses in silos, the transsystemic curriculum integrated both legal traditions into classes from first year. Professors were not limited to Canadian common and civil law, but were instead encouraged to bring in perspectives from legal traditions around the world.

The end result was an entirely new standard for legal education — instead of studying the laws of any one particular jurisdiction, the McGill Programme was a study of law in its many permutations.

Fifteen years later, the McGill Programme is here to stay. The university has become a destination for scholars and instructors interested in legal issues that transect different legal jurisdictions and traditions. According to dean Daniel Jutras, a number of students who apply to McGill don’t apply to any other universities. “They recognize that there’s something very distinctive happening here,” he says.

McGill’s system has been hailed by many as a model for what legal education should look like in a globalized world, with “transsystemia” becoming a buzzword in legal education circles. While a number of schools offer dual common and civil law degrees, no other university has fully embraced McGill’s radical vision. If the McGill Programme is the future of legal education, the next “Langdellian moment,” why haven’t the world’s law schools been lining up to follow in McGill’s footsteps?

One of the factors is the immense amount of work such a transition requires. To start with, professors must get rid of the way they traditionally teach classes. “If you’re teaching, as I am, a course in civil procedure at an institution that focuses on Canadian law or Quebec law, there are multiple textbooks that you can rely on and the structure of your course is pretty much given,” says Jutras. But at a school that’s embraced transsystemic law, a professor will bring together multiple legal traditions to bear on every subject and will have to find sources from around the world.
“In a sense that freedom becomes both a challenge and a burden,” says Jutras. “Those questions mean that pedagogy and the content of the courses and how the courses are structured is a constant question for my colleagues. And that means that they have to be really committed to this.”

But should law schools really be emulating McGill at all? Arthurs thinks they should, but not by copying the transsystemic curriculum. “I don’t particularly think McGill should send missionaries and establish colonies in France or Saskatchewan.” Instead, according to Arthurs, the truly radical aspect of what McGill has done lies less in the content of its curriculum, but instead how it got there.
“What they should emulate is sitting down, figuring out where their intellectual strengths lie,” he says.

Jutras agrees. “I wouldn’t really necessarily aspire to see all Canadian law schools doing what we’re doing,” he says. “I think each law school in Canada brings something really valuable and is doing it really well. This is our niche, this is something we do really well.”

Instead, universities must do serious soul searching. McGill’s history as an anglophone institution in a francophone province, in a country with two systems of law, led it to the transsystemic program. Other universities must figure out the advantages their own history and geopolitical circumstances give them and exploit them. Jutras points to the University of Victoria, now headed by Jeremy Webber, an alumnus of McGill’s 1999 transition, as a university that’s doing the right thing. “They’re looking at a program that will achieve some kind of integration of aboriginal legal perspectives and non-aboriginal perspectives in ways again that resemble some of our pedagogical and institutional assumptions.”

Arthurs, however, thinks any sort of specialization is becoming more of a challenge today than when McGill did it in 1999. “One challenge that McGill didn’t face was that the Federation of Law Societies has for the first time ever laid down requirements if a law school wants its degree to be recognized so its students gain admission to the bars of the various provinces, they now have to ensure their students study certain subjects and acquire what the federation calls competencies,” he says. “It’s a nonsense list, it’s a counterproductive exercise, and it will inhibit people doing what I think they should do and what McGill did.”

But Arthurs urges universities to follow McGill’s example nonetheless. “I think the deliberateness, the care with which McGill did what it did, is what wants emulating rather than having a curriculum that looks like McGill’s curriculum.” ¦

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